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Reducing E-Discovery Costs: Part 4

Ken Neal
by Ken Neal
January 29, 2018
Document Management Strategies

Previously, I highlighted one key solution that can help meet the challenge of reducing eDiscovery costs. In this, my final post in this series, I will spotlight a second solution—technology assisted review (TAR)—that can also help legal professionals achieve this goal.

In response to cost considerations and the increasing volume of data under their purview, more corporations are demanding accountability from attorneys, vendors, and data management teams – analyzing cost, timelines, and outcomes. They are also managing e-discovery processes in house to save costs. As a result, diverse vendor solutions continue to pop up and address this ongoing need and help legal departments predict and manage the costs of document review.

To that end, systems such as TAR have refined the process of e-discovery and made it quicker and more cost-effective. TAR facilitates collaboration between human reviewers and computers to select appropriate documents.

Here’s how it works. Subject matter experts determine whether documents are responsive or privileged, then a computer system is trained to sort and review other documents in the same collection, and makes judgments based on patterns learned from the choices made by the human reviewers.

Computer searches through massive data sets take a fraction of the time needed by human reviewers, and with a considerably higher rate of accuracy. The result of this increased efficiency is a considerable increase in savings. A model based on typical litigation costs showed that a firm using TAR could save 30 percent on total review costs, compared to a firm conducting a traditional linear review using contract attorneys.1

Corporate counsel at larger companies are deploying integrated litigation repositories to standardize all their cases and counsel on a common platform, and then equipping those platforms with cost-saving tools such as TAR.2 Multi-matter repositories allow documents loaded into a core repository to be used in multiple matters and accessed by outside counsel.

“Even if a firm or client chooses not to rely solely on technology-assisted review, using it simply to prioritize reviews and productions into tiers can still streamline the process substantially,” said John Pierce, managing partner at Pierce Burns LLP in Los Angeles. “That is often how technology-assisted review is used in criminal investigations, where ‘reasonable diligence’ does not always provide sufficient protection to the defendant (criminal subpoenas simply require the production of the requested documents).”

While more data needs to be collected to demonstrate cost reduction over time, it’s clear such tools bring greater transparency and predictability in litigation costs, and save time. E-discovery software and data processing services may also reduce workload and minimize costs for legal hold, collection, processing, and review of documents and data.

“Technology-assisted review, including the use of predictive coding and other artificial intelligence or machine learning technology, can vastly decrease e-discovery costs with respect to both time and expense. It also exponentially increases the accuracy of e-discovery review and production due to the elimination of human error,” Pierce said.

Some litigators have still been reluctant to embrace TAR and other technologies. Maura Grossman chalks up much of this reluctance to force of habit – and a tendency to underestimate how many errors human reviewers can make on their own.

“For many years, there were many firms that made substantial revenue from having junior associates review documents,” Grossman said. “It’s hard for them to give that up. But that’s very different from looking at a screen for 14 hours, at document after document. People tend to be unaware of the level of human error in that task.”

As digital technologies continue to evolve and facilitate a greater number of daily tasks in our personal and professional lives, the amount of electronic data to be sorted in discovery will only increase. To get a handle on the mounting costs of e-discovery and begin to reduce expenditures while remaining compliant, litigators and their support staff are advised to shift to an information governance framework and embrace technological solutions that automate the process, increase accuracy and speed, and reduce labor costs.

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1. Christopher H. Paskach, F. Eli Nelson and Matthew Schwab, “The Case for Technology-Assisted Review and Statistical Sampling in Discovery,” Position Paper for DESI VI Workshop, June 8, 2015, ICAIL Conference, San Diego

2. John Tredennick, “Taking Control: How Corporate Counsel are Integrating E-Discovery Technologies to Help Manage Litigation Costs,” Bloomberg Law Insights, November 5, 2014.

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